The protection of individual liberties is a fundamental debate that has raged throughout the history of the United States from its conception to the present day. Even before the U.S. Constitution was established, debates between Federalists and Anti-Federalists embodied the concern over the protection of the individual from the deprivation of their rights by the state. As Hamiltonian Federalists supported a strong central government, Anti-Federalists insisted on the addition of the Bill of Rights before joining the final ratification of the new U.S. Constitution. Even at that moment, they still feared an arm of the new government reaching too far into the private rights of the individual.
The Supreme Court has wrestled with the issue of what constitutes a fundamental right throughout its history. Efforts to discern this, however, took on a new level of sustained intensity upon the passage of the Reconstruction Amendments. Specifically, the passage of the 14th Amendment in 1868 produced two new clauses that continue to influence Supreme Court decisions to this day. These clauses are located in Section 1 of the 14th Amendment, which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)
Both clauses extend the Constitution into the state and local governments to achieve uniformity across the nation. The Due Process Clause prohibits states from the deprivation of life, liberty or property without taking certain steps. The Equal Protection Clause requires states to give equal protection under the law to all people within its jurisdiction. In the application of these two clauses, the Supreme Court has chosen a doctrine of selective incorporation of the rights laid out in Bill of Rights, applying them to the states. Over the years, the Supreme Court has selectively incorporated aspects of the First, Second, Fourth, Fifth, Sixth and Eighth Amendments.
What was the standard of incorporation? The doctrine of incorporation applies in two instances to determine a fundamental right. If either the right is “implicit to the concept of ordered liberty”, or it is “deeply rooted in the nation’s history and traditions”, it is incorporated. If deemed a fundamental right in one of these two instances, the State has the burden of proof to show a “compelling state interest” if it wishes to continue regulating that right.
During the early twentieth century, the court began to expand individual rights under Chief Justice Earl Warren. Specifically, they began expanding fundamental rights in both procedural and substantive due process. Procedural due process involved the refinement and incorporation of rights that already existed in the Constitution, or derived from procedures to carry out those existing rights. Most of these procedural rights were determined within the scope of civil rights and criminal procedures. On the other hand, substantive due process derived rights that were more subtle in origins. While the Constitution does not specifically enumerate these rights, the Court construes them from other rights present. Areas of substantive due process include rulings on religion and privacy cases.
In the late twentieth century, the Supreme Court slowly contracted these liberal reaches under the leadership of Chief Justice William Rehnquist (and to a lesser extent, under Warren Burger). As primary contenders of jurisprudence, the Warren and Rehnquist Courts offer great examples for comparison. The following section examines the evolution of the Due Process Clause and the Equal Protection Clause from two distinct era of the Supreme Court.
1. Due Process Clause
Due Process: Free Exercise of Religion
In Sherbert v.Verner, 374 U.S. 398 (1963), the case concerns Adell Sherbert, a Seventh-day Adventist, who could not work on Saturdays due to her religious beliefs. When her employer changed to a six-day workweek that included Saturdays, she refused to work. The company fired Sherbert and the Employment Security Commission denied her application for unemployment insurance. The state court later affirmed the denial. On appeal in a 7-2 decision, the Supreme Court reversed the decision. They insisted that to deny her claim would place an unconstitutional burden on the free exercise of her religion. The majority decision, written by Justice Brennan, yielded the creation of the ‘Sherbert Test’. The test involved three basic questions applied to decades of future free exercise cases. Those questions are:
1. Is the plaintiff’s free exercise of their religion truly burdened?
2. If yes, does the state have a compelling interest in imposing that burden?
3. If yes, can the state’s interest be achieved in a manner that imposes a lesser burden
In 1990, the Rehnquist court finally reversed Sherbert v. Verner in the case of Employment Div. of Oregon v. Smith, (494 U.S. 872 (1990)), also referred to as the ‘peyote case’. Two members of the Native America Church worked for a private drug rehab organization in Oregon. As part of their church rituals, they frequently participated in the use of peyote. Upon indicating this to their employer, and due to the declaration of peyote as a controlled substance by the state of Oregon, the rehab center fired both employees. Oregon also denied their unemployment claim. Justice Scalia upheld the case on behalf of Oregon, arguing that the declaration of peyote as a controlled substance was a law that bound all Oregonians and did not discriminate against one particular group of individuals. Therefore, there was no need to apply the ‘Sherbert Test’ and no need to determine if Oregon held a “compelling interest” in burdening the employees’ free exercise of religion.
The Rehnquist Court split. Justices Blackmun, Brennan and Marshall dissented, arguing that the ‘Sherbert Test’ was still necessary. Justice O’Connor, who concurred with Justice Scalia in the majority opinion, did also side with the dissenting justices on the point of the ‘Sherbert Test’. The judgment was a significant turnaround. It allowed state restriction of certain religious actions as long as they did not target a specific community group. As long as the state applied the law to everyone indiscriminately, the ‘Sherbert Test’ was no longer necessary. The ruling resulted in the passage of the Religious Freedom Restoration Act (RFRA) in 1993, temporarily restoring the test. With the passage of the RFRA, it is clear that Congress exerted authority with a corrective direct punch at the judicial branch. Countering in 1997, the court ruled the RFRA unconstitutional in City of Boerne v. Flores, (138 L.Ed. 2624 (1997), virtually eliminating the ‘Sherbert Test’.
Due Process: Criminal Procedure
The incorporation of rights through the Fourteenth Amendment made a significant impact in the definition and expansion of rights of criminal procedure. Notably, Palko v. Connecticut, 302 U.S. 319 (1937) addressed the incorporation of the Double Jeopardy Clause of the Fifth Amendment. The case paves the way for continued refinement of criminal procedure rights in Escobedo v. Illinois, 378 U.S. 478 (1964) and the addition of substantive due process ‘Miranda rights’, derived from the Fifth Amendment, in Miranda v. Arizona, 384 U.S. 436 (1966). Palko, charged with first-degree murder, receives life in prison during his first trial. The state, however, appealed to retry the case in pursuit of the death penalty. Palko receives a death sentence in the second trial. This Warren Court case exemplifies ‘selective incorporation’. Writing for the majority, Justice Cardozo admitted that while some rights, such as freedom of thought and speech, are fundamental and incorporated by the Fourteenth Amendment, the protection from double jeopardy is not a fundamental right. As a result, Palko was electrocuted in 1938 and the precedent lasted for three decades until the Warren Court overturned Palko in Benton v. Maryland, 395 U.S. 784 (1969). To borrow a 1992 quote from Justice O’Connor, “Liberty finds no refuge in a jurisprudence of doubt.” The court had finally evolved in its incorporation of the Fifth Amendment, certainly removing the jurisprudence of doubt surrounding double jeopardy.
The incorporation of the Fifth Amendment ultimately expanded through the addition of Miranda v. Arizona. Yet, Rehnquist would soon seek to restrain it. In Colorado v. Connelly, 479 U.S. 157 (1986), the defendant offered an involuntary confession. The court had to determine if the admission of his statements into evidence would violate the Due Process Clause. Despite the man’s mental state of schizophrenia, the court ruled his involuntary confession was admissible. As a result, the case limited Miranda v. Arizona. According to Rehnquist, “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.”
Due Process: Privacy
The origins of substantive due process can be found as early as 1938 in footnote four of United States v. Carolene Products Co., 304 U.S. 144 (1938). Afterwards, a specific privacy also emerged through substantive due process during the Warren Court in Griswold v. State of Connecticut, 381 U.S. 479 (1965). In the case, the court ruled a state law banning contraceptives as unconstitutional because it “violated right to marital privacy”. Later, in the landmark Burger Court decision of Roe v. Wade, 410 U.S. 113 (1973), the right to privacy is modified to include a woman’s private right privacy and choice for an abortion. Rehnquist dissented, arguing that the Court “had no business reflecting society’s changing and expanding values”.
Due Process: Voting Rights
In Baker v. Carr, 369 U.S. 186 (1962), the Warren Court removed reapportionment from the political sphere and made it a judicial issue. Justice Brennan devised a six-step plan for determining cases that are “political in nature”. In addition, the court created the “one-person, one-vote” standard for redistricting. This shift fundamentally altered political representation going forward. Later, in Bush v. Gore, 531 U.S. 98 (2000), the Supreme Court ruled that the method of recounting ballots employed by the Florida Supreme Court was unconstitutional as it violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. There was no set standard in Florida for ballot recounting during a very close election in 2000 between George W. Bush and Al Gore. Yet the Florida Court ordered a recount without setting standards. Of course, the Florida state legislature must set the standards, not the court. The Supreme Court found that no remedy could be made for a valid recount. The Supreme Court ruling stopped the recount, deemed the Florida court ordered recounts unconstitutional, allowed a previous certification of the ballots go through and resulted in George W. Bush becoming President. Despite the precedent of “one person, one vote” set by Baker V. Carr in 1962, Rehnquist’s majority opinion departed from stare decisis, calling it an unusual case. “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
2. Equal Protection Decisions
Equal Protection: Segregation
During the growth of the Civil Rights movement, the Supreme Court faced growing racial tensions. In effect, the Warren Court engaged the use of the Equal Protection Clause to desegregate the country. In Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954), the Court asserted its power to force desegregation on the basis that “separate educational facilities are inherently unequal”. This decision reversed and rejected Plessy v. Ferguson, 163 U.S. 537 (1896) through the incorporation of the Equal Protection Clause by the Fourteenth Amendment. As a champion to promote the success and rights of the individual, the Court takes on responsibility for race in public education. It then allowed ‘gradual adoption’ of desegregation in Brown II. When the states did not move fast enough in the South, however, the Court ordered segregation eliminated immediately “root and branch”. Later, Rehnquist sought to end federal court orders for desegregation in Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991) and Missouri v. Jenkins, 515 U.S. 70 (1995).
Equal Protection: Discrimination
In addition to being a precursor to substantive due process privacy rights, footnote four of United States v. Carolene Products Co., 304 U.S. 144 (1938) also paved the way for the institution of judicial inquiry into racial minorities and women. According to the opinion from Justice Stone,
Prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”
Such inquiry was defined by the following newly defined levels of scrutiny:
1. Strict Scrutiny – if a law categorizes on the basis of race or nationality or infringes on a fundamental right, it is unconstitutional, unless “narrowly tailored” to serve a “compelling” government interest;
2. Intermediate Scrutiny – if a law discriminates based on sex, it is unconstitutional unless “substantially related” to government interest;
3. Rational Basis Test – if a law discriminates on any other undefined basis, it is constitutional as long as it is “reasonably related” to a “legitimate government interest”.
Strict scrutiny was first applied by the Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944). The court determined that Korematsu was not discriminated against because of his nationality but because the U.S. was at war with Japan in World War II. Therefore, national security needs outweighed Korematsu’s individual rights in that instance. It would later appear in application in Loving v. Virginia, 388 U.S. 1 (1967), a case eliminating acts against interracial marriage. In the decision, often cited today by proponents of same-sex marriage, the majority opinion states:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Rehnquist would later seek to redefine race in schools. Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the University rejected Bakke’s admission two years in a row. Upon learning of a quota system in place at the University, Bakke sued on the grounds of ‘reverse discrimination’. Prior to this case, race as an admissions issue was constitutional if it helped to achieve diversity. The Burger Court (with Rehnquist) modified this by ordering Bakke’s admission and ruling against quotas. Yet, they defended the legality of affirmative action programs.
3. Jurisprudential Differences
During the twentieth century, the liberal Warren Court expansion of individual rights is tempered by the judicial restraint of the conservative Rehnquist Court. Both courts addressed civil rights, criminal procedures, voting rights, religion and privacy. Warren led a united court in liberal activism, working to expand individual rights and proactively correcting lingering racial issues. The Constitution, in liberal context, was a ‘living document’, ever expanding and evolving, relying on the building of precedent through the years since its drafting. Liberal justices were certainly more loyal to the notion of stare decisis than were conservatives such as Rehnquist and Burger, who sought to actively retry and reinterpret a variety of landmark Warren Court decisions.
Wrought with differing opinions and court division, the Rehnquist Court was led by a justice with strict constructionist and originalist views. In Rehnquist’s mind, the Warren Court had gone too far with the Due Process Clause. He preferred to leave that, as well as due process criminal procedures, to the Congress. He also believed that the intent of the framers of the Constitution was specific and required strict adherence. Rehnquist also saw the rational basis test, as “not a standard for weighing the interests of the government against the individual; rather, it was a label to describe a preordained result.” He sought to remove the context of race from decisions and worked to rein in Warren Court decisions that he openly detested, even as a clerk. In a 1952 memo entitled A Random Thought on the Segregation Cases, Rehnquist, the clerk, states,
I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues but I think Plessy v. Ferguson was right and should be reaffirmed…. To the argument … that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.
Regarding the Equal Protection Clause, Rehnquist again does not see the need for the Supreme Court to involve itself beyond strict constitutional language. In Trimble v. Gordon, 430 U.S. 762 (1977), Rehnquist states,
Unfortunately, more than a century of decisions under this Clause of the Fourteenth Amendment have produced …. a syndrome wherein this Court seems to regard the Equal Protection Clause as a cat-o’-nine-tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand and pass ‘arbitrary’, ‘illogical,’ or ‘unreasonable’ laws. Except in the area of the law in which the Framers obviously meant it to apply—classifications based on race or on national origin, the first cousin of race—the Court’s decisions can fairly be described as an endless tinkering with legislative judgments, a series of conclusions unsupported by any central guiding principle.
The differing perspectives of Warren and Rehnquist reflected the times in which they served. The Warren Court followed the New Deal era, when the entire country was ripe for expansion and growth after the fallout of the Great Depression. Such growth was causing a wealth of new individual rights issues that the liberal court felt it needed to deliberate. The government was proactive in its involvement of economic and societal growth, as was the Warren Court. Rehnquist, appointed by Nixon, presided as Chief Justice during the country’s Cold War, during a swing back to conservatism during the 1980s.
4. My Personal Jurisprudence of Constitutional Interpretation
In my opinion, the substantive due process establishment of the right to privacy is a necessary extension of individual rights and reflects the liberal view of a “living document” that continues to evolve. Without the Carolene Products footnote, we would not have been able to define the individual right to privacy in such expansive ways. The obvious impact on Roe v. Wade and subsequent privacy legislation bears this out. As a student of History, I am keenly aware of the vast changes in culture, innovation, industry, technology and society that have taken place in the U.S. over the past two centuries. While a strict constructionist view works for Rehnquist and other conservatives, I am not completely convinced. In general, I find myself more in line with the flexible view posited by Antonin Scalia. “[A] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”
When I began this course, I loved Federalists. I agreed wholeheartedly with Hamilton’s view that the government needed to expand and establish strength to bring unified order to all aspects of life in the new United States. Life, as do politics and ideologies, changes with time. At the birth of the United States, Hamilton’s federalism made sense. Yet we now find ourselves with a much different country. A plethora of change over the years has yielded a variety of new problems to solve and new issues to define. As the country changes in its makeup and diversity, so to must we continually ask ourselves who will protect the individual, and the rights of that individual, in our society. As new rights become necessary, we must remain flexible in seeking them out reasonably and rationally.
I believe the framers left the language of the Constitution loose enough to be reasonably and rationally adapted to change. For example, technology opens the door to new privacy issues today. Where do we draw the line between state interference in our privacy for the purposes of protecting the general welfare, while protecting our individual privacy from the control of that same government? With the dawn of the internet, the proliferation of video surveillance cameras, and recent legislation such as the Patriot Act, we must continue to use the Constitution to navigate the changing needs of our time. Not only do these technologies affect my privacy, but they also affect my freedom of speech. Does instant transmission of thoughts and private information over the internet affect my freedom of speech? Can my job fire me for what I say on social media sites such as Facebook, or do I retain the right to express my private opinions outside of work on my own time? To a strict constitutionalist, there would be no recourse to adapt to these new and unforeseen issues surrounding individual liberties. Yet, in viewing the Constitution as a living document, and shaping jurisprudence around this philosophy, we will be able to moderate government’s protection and preclusion of our evolving rights. Therefore, I see the Carolene footnote as an essential catalyst for the continued flexibility and growth of individual privacy rights.
U.S. Const, Amend. XIV, § 1.
Baker v. Carr, 369 U.S. 186 (1962)
Benton v. Maryland, 395 U.S. 784 (1969)
Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991)
Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954)
Bush v. Gore, 531 U.S. 98 (2000)
city of Boerne v. Flores, (138 L.Ed. 2624 (1997)
Colorado v. Connelly, 479 U.S. 157 (1986)
Employment Div. of Oregon v. Smith, (494 U.S. 872 (1990))
Escobedo v. Illinois, 378 U.S. 478 (1964)
Green v. County School Board of New Kent County, 391 U.S. 430 (1968)
Griswold v. State of Connecticut, 381 U.S. 479 (1965)
Korematsu v. United States, 323 U.S. 214 (1944)
Loving v. Virginia, 388 U.S. 1 (1967)
Miranda v. Arizona, 384 U.S. 436 (1966)
Missouri v. Jenkins, 515 U.S. 70 (1995)
Palko v. Connecticut, 302 U.S. 319 (1937)
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
Roe v. Wade, 410 U.S. 113 (1973)
Sherbert v.Verner, 374 U.S. 398 (1963)
Trimble v. Gordon, 430 U.S. 762 (1977)
United States v. Carolene Products Co., 304 U.S. 144 (1938)
Benedict, Michael Les, The Blessings of Liberty (1996, rev. ed. 2005).
Friedman, Leon, The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. (Chelsea House Publishers, 1978), at 115.
Hall, Kermit. Major Problems in American Constitutional History: Documents and Essays, (Lexington, Mass.: D.C. Heath, 1992).
Hammond, Phillip E., American Church/State Jurisprudence from the Warren Court to the Rehnquist Court, in Journal for the Scientific Study of Religion, Vol. 40, No. 3 (Sep., 2001), pp. 455-464, at http://www.jstor.org/stable/1388099.
Rehnquist, William, A Random Thought on the Segregation Cases, S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29–31, and August 1, 1986), at http://www.gpoaccess.gov/congress/senate/judiciary/sh99-1067/324-325.pdf.
Scalia, Antonin, A Matter of Interpretation, (Princeton Univ. Press, 1998).
Woodward, Bob & Scott Armstrong, The Brethren: Inside the Supreme Court. (Simon and Schuster, 1979), at 221.
 U.S. Const. amend. XIV, § 1.
 Employment Div. of Oregon v. Smith, (494 U.S. 872 (1990))
 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
 Colorado v. Connelly, 479 U.S. 157 (1986)
 Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court. (Simon and Schuster, 1979), at 221.
 Bush v. Gore, 531 U.S. 98 (2000)
 Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954)
 Green v. County School Board of New Kent County, 391 U.S. 430 (1968)
 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938)
 United States v. Carolene Products Co., 304 U.S. 144 (1938)
 Loving v. Virginia, 388 U.S. 1 (1967)
 Phillip E. Hammond, American Church/State Jurisprudence from the Warren Court to the Rehnquist Court, Journal for the Scientific Study of Religion, Vol. 40, No. 3 (Sep., 2001), pp. 455-464, at http://www.jstor.org/stable/1388099
 Leon Friedman, The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978, at 115.
 William Rehnquist, “A Random Thought on the Segregation Cases”, S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29–31, and August 1, 1986), at http://www.gpoaccess.gov/congress/senate/judiciary/sh99-1067/324-325.pdf
 Antonin Scalia , A Matter of Interpretation, (Princeton Univ. Press, 1998).